I’ll depart with one further observation, one that shouldn’t be surprising given my week o’ posts, or to anyone who follows Vice Squad. Here are some of the happenings during the past week — happenings so common, so mundane, that they almost manage to fly under the radar: 38 arrested in Chicago; 42 arrested in Chatham County, Georgia; 4 arrested in Reno; 10 arrested in Decatur, Alabama; 9 arrested in Willimantic, CT; 16 arrested in Elmore County, Alabama?

And what is the noble purpose served by this frenzied feeding into the maw of the insatiable criminal justice system? To make it a little bit harder for some of our friends and neighbors to consume a substance that they choose to consume.

Thanks again to Walter Olson and Ted Frank, and be sure to check in tomorrow for a new, improved guest blogger.

Happy Trails is a post from Overlawyered - Chronicling the high cost of our legal system

With respect to serious crimes, the law agrees with our general intuition: a condition of intoxication or addiction is not an excuse for criminal behavior. Nevertheless, many people are willing to be indulgent of less serious social indiscretions if the perpetrator “had a bit too much to drink.” Chronic addicts, however, often become unsympathetic characters — even compassionate social workers find themselves “blaming the victim” (the client or patient) when they deal extensively with junkies.

Many treatment programs, including Alcoholics Anonymous, Narcotics Anonymous, and Gamblers Anonymous, explicitly adopt a disease perspective towards their respective addictions. Nevertheless, these programs do not absolve the addict of responsibility for his or her behavior — quite the contrary, they emphasize personal accountability. Even if biological conditions make drug use a nearly overwhelming necessity for some addicts, it is the drug use which is the necessity — not bank robbery or car theft or other crimes. And generally even the drug use will be deterred if a police officer is standing over their shoulder.

Incidentally, in the mid-1960s it looked as if the US Supreme Court might make the status of addiction an excuse for some sorts of crimes. This impression was squelched via the 1968 case of Powell v. Texas.

According to the arresting officer, Leroy Powell was walking down a public street in Austin, Texas, staggering as he walked, and smelling of alcohol. Powell was convicted of being “found in a state of intoxication,” and the conviction was upheld (and the fine doubled, to $40) upon appeal to the Travis County Court. This 1966 arrest itself was far from an isolated incident for Mr. Powell, who estimated that he had been arrested about one hundred times in similar circumstances in the past. The Travis County Court issued findings of fact submitted by Powell’s defense team. These included the claims that Powell suffered from the disease of chronic alcoholism, which undermined his ability to resist drinking, and made his choice to appear in public in an intoxicated state one taken under the compulsion of the disease. The Travis County Court did not find that these “facts” constituted a defense to the charge of public intoxication.

The Supreme Court upheld Mr. Powell’s conviction on a 5-4 vote, though in their preliminary deliberations the justices apparently split 5-4 in favor of overturning the conviction. Four separate opinions were filed, with no opinion for the Court. Justice Thurgood Marshall wrote an opinion for himself and three other justices who voted with the majority. Marshall noted that Mr. Powell was not convicted because he was an alcoholic, but because of his public behavior, which both created hazards and offended sensibilities. Thus, Mr. Powell’s sentence was not a “cruel and unusual” punishment, which would be precluded by the Eighth Amendment. Justice Byron White also voted to uphold the conviction, but added a separate opinion, in which he noted that there was no evidence that Mr. Powell was unable, because of his condition of alcoholism, to remain off of the streets — in other words, Powell’s condition had not put his actions beyond his control.

Besides the case itself, this description of Powell v. Texas relies upon David Robinson, Jr., “Powell v. Texas: The Case of the Intoxicated Shoeshine Man. Some Reflections a Generation Later By a Participant.” American Journal of Criminal Law 26 (401), Summer, 1999.

Personal Responsibility and Addiction is a post from Overlawyered - Chronicling the high cost of our legal system

More on Racial Profiling is a post from Overlawyered - Chronicling the high cost of our legal system

Those who take the “efficient policing” position often say that the disproportionate number of stops is OK, as long as the probability that a searched motorist is carrying contraband (in the case of anti-drug enforcement, the aim of most of the highway searches) is about the same for blacks as for whites. (This probability is sometimes called the “hit rate.”) By this reckoning, if only 5 percent of the blacks who are searched are found to be carrying drugs, while 20 percent of the whites searched are carrying, then the racial disparities in searches are not consistent with efficient policing and should be curtailed, eliminated, or reversed. On the other hand, if the hit rate for searches is about 20 percent for both groups, then the use of race as an indicator might be acceptable.

But I and my co-author, Michael Alexeev of Indiana University, think that this standard “efficient policing” story is mistaken, for reasons that I will mention after the “Continue reading…” link.

Our paper (available from Mike’s website) argues, among other things, that comparative hit rates offer essentially no information as to whether racial profiling is “efficient” or not. Efficiency in policing is a tricky concept, and for most notions of what efficient policing would look like, hit rates just don’t matter. To quote from the paper itself — apologies in advance for the econ-ese — we “identify three mechanisms through which claims of efficient profiling can falter. First, efficiency in serving the goal of maximizing arrests does not imply efficiency in terms of minimizing illegal behavior. Second, efficient profiling by individual police officers can lead to socially excessive profiling in the aggregate. And third, to the extent that profiling reduces cooperation between the targeted group and the police, efficient profiling from the point of view of maximizing arrests will be inefficient in terms of maximizing convictions, or in minimizing illegal activity.” Hit rates that are similar among different races suggest that individual police officers are behaving efficiently with respect to the goal of maximizing arrests. But that is a far cry from representing socially efficient policing.

And finally, I’d like to publicly apologize to my long-suffering friend and co-author, Professor Alexeev, for sitting on the revisions to our Racial Profiling paper for, oh, approximately one year. And that is just the delay for the most recent round of revisions. But you know, Mike, I had to blog.

Racial Profiling is a post from Overlawyered - Chronicling the high cost of our legal system

The Times article includes a couple of quotes from “Gen. Mauro Jos? Miranda Gandra, a former chief of the air force who is now director of the Air Institute at Est?cio de S? University in Rio de Janeiro.” Gen. Gandra is concerned, it seems, that the shootdown policy will not be applied to any planes with children in them:”‘This really left me perplexed, because it practically undermines the very purpose of the decree,’ General Gandra said. ‘What you’re doing is creating a safe-conduct pass for drug-smuggling aircraft carrying kids and creating the possibility that children will be kidnapped and used as human shields.’”

Yes, drugs are so evil that you have to be willing to shoot down planes with children in them to combat drug trafficking. Anything short of that is a dangerous half-measure.

I am reminded of Vice Squad hero Clarence Darrow, the renowned criminal defense lawyer and staunch opponent of alcohol Prohibition. Commenting upon the policy of “denaturing” industrial alcohol in order to make it unpalatable or worse for people who drank it — while knowing that many people were going to drink it — Darrow had this to say:

“So far as I know, no organization of human beings heretofore has coldly and deliberately advocated poisoning any one who might run counter to their will. The prohibitionists insist that alcohol sold for mechanical purposes and shipped broadcast over all America shall contain deadly poison. They advocate this, knowing that much of it is redistilled and used as a beverage, that many people might and do get it through accident and without any design to take intoxicants; and that, at best, or worst, to drink it is only a minor offense; yet men and women, who in ordinary life are kind and humane, are so obsessed by their delusions and so sure of their convictions, and so resentful of those who do not follow their dictates, that they are willing to condemn to blindness and death thousands of people, without arrest or indictment or trial, by putting poison into their drink. Heretofore such measures have not been resorted to against anything but rats and vermin, and many humane persons hesitate to do this.”

Brazil Hoping To Shoot Down Suspected Drug Planes is a post from Overlawyered - Chronicling the high cost of our legal system

But if we are the government, what can we do? We can make it illegal to traffic in a commodity that many people want to consume. Then, a black market will develop, and of course it will develop primarily in bad neighborhoods where schools are rotten and legal earning prospects are poor. Then, we will occasionally police the black markets, and any young men who actually are tempted to sell the verboten commodity we label as reviled “drug pushers” or maybe even “drug kingpins,” and we put them away for a long, long, time. And the penalties applied to adults will be so significant, in fact, that 12 and 13 and 14-year old kids in these poor neighborhoods will have a comparative advantage in working in the trade, so we will have to arrest them, too, even if we can’t lock them up for quite so long. And we will shake our heads at the immorality of those folks in the bad neighborhoods who allow their youngsters to become drug pushers.

And while we are at it, we can set up ongoing integrity tests for the police, too. As drug transactions are voluntary, they generally don’t involve a direct victim who has incentives to go to the cops (especially if the transaction is not creating a public nuisance). A less-than-vigilant drug enforcement officer will not have complaints piling up on his sergeant’s desk, as he might if he neglected to investigate robberies, say. Anti-drug officers will quickly learn that their own efforts aren’t going to alter much of anything, that people will still buy and sell drugs, anyway, and that the drug use in and of itself only directly harms the user. And the officers also see that they can earn a lot of money, maybe thousands of dollars a month, by turning their heads at the appropriate times. Some of them do, and some of those get caught, and we are happy to label them “corrupt cops” and “bad apples,” and ship them off to prison, too, shaking our heads at their immoral acts that have brought shame upon our nation’s finest.

Now I am no lawyer, but maybe we should think about extending this notion of attractive nuisance to some of our drug laws, too.

Attractive Nuisance and Drug Laws is a post from Overlawyered - Chronicling the high cost of our legal system

Surely, if marijauna use would have been widespread during the Scottish enlightenment, Adam Smith would never have written about a smuggler in the terms that he actually did use in 1776: “a person, who, though no doubt highly blameable for violating the laws of his country, is frequently incapable of violating those of natural justice, and would have been, in every respect, an excellent citizen, had not the laws of his country made that a crime which nature never meant to be so.”

More Victories in the War on Drugs is a post from Overlawyered - Chronicling the high cost of our legal system

It seems as if many people have a hard time believing that a small increase in price will actually dissuade alcohol consumption, especially by heavy drinkers or teenagers. And, to take it a step further, that the small price increase will result in any noticeable decline in bad outcomes, such as auto crashes. But there is lots of research on these points, and what it generally (though not universally) finds is that price increases do lead to reduced alcohol consumption, and to, for instance, fewer auto crashes. In fact, taxes seem to have more of an influence on fatal crashes than they do on overall alcohol consumption. One web-available review of these points (that I, for what it is worth, regard as pretty balanced) can be found here (pdf, 14 pages).

Radley doesn?t believe that tax policy should be used for the purpose of manipulating personal behavior. Now one can argue over the extent to which drunk driving is an “external” cost of drinking, and surely what constitutes an externality is not fixed in time or place. (It would be great if we could always rely on perfectly targeted policies that only affect the bad actors and no one else, but often, to the extent that such policies are feasible, they are inadequate. At the extreme, you could even argue that drunk driving should not be illegal, because some people do it pretty well, without causing much of a risk to others. I have some hopes, incidentally, for technological advances that can do a better job of keeping troublesome drinkers from alcohol, without impinging upon other drinkers or nondrinkers. The better these devices are, the fewer the “externalities” for taxes to correct.) But to the extent that some of the associated costs of drinking are real externalities, then internalizing them through a legislated higher price isn?t really “taxation” in the usual sense of the word. Rather, the excises eliminate an existing implicit subsidy. Done correctly (no small feat, of course), they enhance, rather than detract from, the working of the markets.

Can a case be made for taxing alcohol even beyond what would be called for by internalizing external costs? I think so, for a couple of reasons. First, alcohol often involves costs to the drinker that do not seem to be fully accounted for ? “internalities,” as the saying goes. But second, well, here I will turn to Vice Squad hero John Stuart Mill, from Chapter V of On Liberty. (I should also mention that most studies find that higher alcohol taxes in the US would cause an increase in revenue.) After first suggesting that consumption choices should be left to personal judgment, Mill continues:

“But it must be remembered that taxation for fiscal purposes is absolutely inevitable; that in most countries it is necessary that a considerable part of that taxation should be indirect; that the State, therefore, cannot help imposing penalties, which to some persons may be prohibitory, on the use of some articles of consumption. It is hence the duty of the State to consider, in the imposition of taxes, what commodities the consumers can best spare; and ? fortiori, to select in preference those of which it deems the use, beyond a very moderate quantity, to be positively injurious. Taxation, therefore, of stimulants, up to the point which produces the largest amount of revenue (supposing that the State needs all the revenue which it yields) is not only admissible, but to be approved of.”

More on Alcohol Taxation is a post from Overlawyered - Chronicling the high cost of our legal system

The second major difference is that alcohol prohibition was restricted to a handful of countries, whereas drug prohibition is global. As a result of the limited geographical scope, there was plenty of legally produced alcohol during Prohibition, such as that made in Canada (and then illegally smuggled into the US) by Seagrams. But more importantly, the fact that other countries had legal alcohol — and were often just as successful in reducing consumption and alcohol-related problems as the US — provided ongoing evidence of the extent to which Prohibition was a policy blunder. With global drug prohibition, we are very limited in the types of policy experiments that can be run; even in the Netherlands, marijuana is technically just as illegal as it is in the US. This helps to explain the odd “self-justifying” nature of drug prohibition. Bad outcomes under drug prohibition should tend to discredit prohibition as a policy. This is what would likely occur if there were a visible alternative policy with outcomes that were better. Instead, bad outcomes under drug prohibition are met with the logic that if there were fewer drugs, there would be fewer bad outcomes. So to reduce bad outcomes under prohibition, we need… a stronger, more committed prohibition!

Alcohol Prohibition v. Drug Prohibition is a post from Overlawyered - Chronicling the high cost of our legal system

In Britain, where speed cameras are pretty common, ambulance drivers have been receiving hundreds of speeding tickets each week. It should come to an end now, at least in England and Wales, because at the beginning of July the police reached an agreement with the health minister calling for a cessation to the tickets — as long as the ambulance’s blue emergency lights are visible in the photograph. The agreement was spurred by a particularly notorious case, as reported in this article from the Guardian on July 3: “Pressure for a change to the penalty procedure mounted last year after Mike Ferguson, a Bradford ambulance driver, was charged with speeding as he delivered a liver for a transplant operation in Cambridge.”

So, man triumphs over unfeeling machine — but maybe we shouldn’t be too pleased with ourselves. In the pre-camera days of the 1960s, British law against red-light running did not include an exception for emergency vehicles. As with the recent circumstances with the cameras, the 1960s situation placed drivers of fire engines in a quandary: their licenses (and hence livelihoods) were at risk, while some chief officers of fire departments mandated that their drivers ignore red lights. An exception to the red-light law was finally carved out for fire engines and other emergency vehicles, first in the common law — in 1971! — and later by an Act of Parliament.

A Different Sort of Zero Tolerance Tale is a post from Overlawyered - Chronicling the high cost of our legal system